Disadvantaged Business Enterprise Program: Participation Plan

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1 Disadvantaged Business Enterprise Program: Participation Plan Revised In Response to 49 CFR 26 et. seq. Washington State Department of Transportation Office of Equal Opportunity

2 Persons with disabilities may request this information be prepared and supplied in alternate forms by calling collect (206) ; Olympia area (TDD or V), or outside Olympia (TDD or V).

3 Contents Contents Page Executive Order I. Purpose I-1 A. Scope I-1 B. Authority and Applicable Laws I-1 II. Applicable Recipients II-1 III. Definitions III-1 IV. Nondiscrimination IV-1 V. USDOT Issued Guidance and Interpretations V-1 VI. Records and Reports VI-1 A. WSDOT and Subrecipients VI-1 B. Contractor Bidders List VI-2 C. Prime Contractors and Subcontractors VI-2 VII. Assurances VII-1 VIII. Local Agency and Subrecipient Requirements VIII-1 IX. Liaison Officer IX-1 A. Designation of Liaison/Responsibilities IX-1 X. Minority and Women-Owned Financial Institutions X-1 XI. Required Contract Clauses XI-1 XII. Prompt Payment XII-1 A. Subcontractor Payment XII-1 B. Release of Subcontractor Retainage XII-1 XIII. DBE Directory XIII-1 XIV. Over-Concentration of DBEs XIV-1 XV. Business Development Program XV-1 XVI. Monitoring and Enforcement XVI-1 A. Procedures for Ensuring Compliance XVI-1 B. An Observed Violation Will Result in a Contract Compliance Review XVI-1 C. Planned Contract Compliance Reviews XVI-1 D. Commercially Useful Function XVI-2 E. Consultant Agreement Compliance XVI-3 F. Substitutions XVI-3 G. Violations of DBE Provisions XVI-6 XVII. Use of Set-Asides or Quotas XVII-1 A. Quotas XVII-1 B. Set-Asides XVII-1 Pagei

4 Contents Page XVIII. Overall DBE Goals XVIII-1 A. Determining the Base Figure (Step One) XVIII-1 B. Adjustment of the Base Figure (Step Two) XVIII-3 XIX. DBE Overall Goal Submittal Process XIX-1 XX. Construction Contract Goals XX-1 A. Elements XX-1 B. Goal Setting Process XX-1 XXI. Consultant Agreement Goals XXI-1 A. Elements XXI-1 B. Goal Setting Process XXI-1 C. DBE Participation XXI-1 D. DBE Participation as a Prime XXI-2 E. Substitutions (Consultants) XXI-2 XXII. Transit Vehicle Manufacturers XXII-1 XXIII. Means to Meet the Overall DBE Goal XXIII-1 A. Race-Neutral XXIII-1 B. Race-Conscious XXIII-2 XXIV. Contractors Good Faith Efforts XXIV-1 A. Selection of Successful Bidder XXIV-1 B. After Execution XXIV-2 C. Administrative Reconsideration XXIV-3 XXV. Counting DBE Participation Toward Goals XXV-1 XXVI. Counting DBE Participation Toward Meeting Annual Goals of Subrecipients XXVI-1 A. Subrecipients Who Have Adopted the WSDOT DBE Plan XXVI-1 B. Subrecipients Who Have Developed and Adopted Their Own WSDOT Approved DBE Plans XXVI-1 XXVII. DBE Management XXVII-1 A. DBE Work Force XXVII-1 B. DBE Equipment XXVII-1 C. Equipment Leased From the Prime Contractor XXVII-1 D. DBE Trucking Firms XXVII-2 E. DBE Trucking Firms Use of Owner/Operator Trucks XXVII-2 F. DBE Trucking Firms Lease/Rental Agreements XXVII-2 G. DBE Manufacturer XXVII-3 H. DBE Regular Dealer XXVII-3 I. DBE Service Provider XXVII-5 Page ii

5 Contents Page XXVIII. Design-Build Contracting XXVIII-1 A. Procedures XXVIII-1 B. DBE Contract Compliance XXVIII-1 C. DBE Participation as a Design-Builder XXVIII-2 D. Nonperformance by DBE With a Design-Builder XXVIII-2 XXIX. DBE Eligibility Certification XXIX-1 A. Purpose of Certification XXIX-1 B. OMWBE Certification Process XXIX-2 C. Verification of Eligibility XXIX-4 D. Guidelines for Certification XXIX-4 E. Ineligibility Complaints XXIX-10 F. Appeals by Businesses Denied Certification XXIX-11 G. Removal of Eligibility XXIX-12 H. Graduation XXIX-13 I. Notice to Federal Authorities XXIX-13 J. Challenge of Socially and Economically Disadvantaged Status XXIX-13 K. Duty to Cooperate XXIX-14 L. Effect and Limits of OMWBE Certification XXIX-15 M. Exclusion From Participation in Federally Assisted Programs Prohibited XXIX-15 XXX. Reporting to USDOT XXX-1 XXXI. Confidentiality XXXI-1 Appendixes 1. WSDOT External Discrimination Complaint Procedures 2. Consultant Certification of Payment Receipt 3. Applicable SIC Codes 4. DBE Utilization Certification DOT Form Joint Venture 6. Interagency Agreement 7. OMWBE Certification Documents CFR Part 26 AND 49 CFR Parts 23 and 26, Final rule; correction 2:P65:DP/OEO Page iii

6 Executive Order Number: E Secretary of Transportation Date: July 26, 1999 Program Established Disadvantaged Business Enterprises This Executive Order is issued to assist Washington State Department of Transportation (WSDOT) employees with implementing the Disadvantaged Business Enterprise (DBE) Program. Federal Financial Assistance As a condition of receiving federal financial assistance from the United States Department of Transportation (USDOT), the department gave written assurance to USDOT that it will comply with the regulations of 49 Code of Federal Regulations (CFR), Part 26. Policy of the Department We establish the following department policy with this Executive Order: Policy Number P , Disadvantaged Business Enterprises Program: It is the policy of WSDOT to comply with 49 Code of Federal Regulations, Part 26, to ensure Disadvantaged Business Enterprises have an equal opportunity to receive and participate in WSDOT assisted contracts. Objectives of the Program The primary objectives of the Disadvantaged Business Enterprises Program are to: 1. Ensure nondiscrimination in the award and administration of federally-assisted contracts.

7 E Disadvantaged Business Enterprises July 23, Create a level playing field on which DBEs can compete fairly for federally assisted contracts. 3. Ensure that the DBE Program complies with applicable laws. 4. Ensure that a firm meets 49 CFR Part 26 eligibility standards before being permitted to participate in the DBE Program. 5. Help remove barriers to DBE participation in WSDOT assisted contracts. 6. Assist the development of firms so that they may compete successfully in the market place outside of the DBE Program. Office of Equal Opportunity Role and Responsibilities The Director of the Office of Equal Opportunity is the departmentõs DBE Liaison Officer. The DBE Liaison Officer is responsible for implementing all aspects of the DBE Program. This effort has the same priority as compliance with all other legal obligations incurred by WSDOT in its financial assistance agreements with the USDOT. Distribution This Executive Order and Policy Statement will be sent to the standard department statewide distribution list. This includes the Transportation Commission, the Executive Board, and all organizations within the department. It will also be distributed to both DBE and non-dbe businesses through the DBE Plan Book distribution, DBE Program training workshops, DBE Support Services Program, and elsewhere to ensure the widest possible distribution. Alternate Formats: Persons with disabilities may request this information be prepared and supplied in alternate forms by calling collect (360) Deaf and hearing impaired people call or for Olympia residents. (TTY relay service).

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9 Washington State Department of Transportation Disadvantaged Business Enterprise Program 49 Code of Federal Regulations Part 26 Participation by Disadvantaged Business Enterprises in the Department of Transportation Financial Assistance Programs I. Purpose The purpose of the Disadvantaged Business Enterprise (DBE) Program is to provide equal opportunity to minorities and women in contracting. The Washington State Department of Transportation (WSDOT) has developed guidelines and procedures to ensure that DBEs have an equitable opportunity to compete for contracts, subcontracts, and agreements. WSDOT endeavors to provide assurances to the U.S. Department of Transportation (USDOT) that WSDOT and its subrecipients of federal financial assistance will comply with federal mandates regarding the DBE Program. A. Scope This program applies to USDOT federal financial assistance where WSDOT and its subrecipients expends federal aid funds authorized by Title I, III, V, and VI of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Pub. L , 105 Stat. 1914, or Titles I, III, and V of the 1998 Transportation Equity Act for the 21st Century (TEA-21), Pub. L , 112 Stat. 107, Federal Transit Laws in Titles 49 U.S.C., and 49 U.S.C , et seq. The DBE Program also applies to federally-funded non-construction programs. Efforts will be made to provide a level playing field for DBE participation in USDOT funded construction, procurement, and consultant contracts. Contract administrators will solicit DBE participation in all contracts that lend themselves to such participation. B. Authority and Applicable Laws The USDOT Regulations (49 CFR Part 26) published in the Federal Register, Volume 64 No. 21, dated February 2, 1999, established a requirement that all recipients of USDOT program funds establish a DBE Program. The regulations are applicable both to WSDOT s federal aid construction and to its nonconstruction activities. Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, national origin, and sex in the provision of benefits and services resulting from federally assisted programs and activities. The program is also subject to the following authorities, 23 U.S.C. 324; 42 U.S.C. 200d et seq.; 49 U.S.C. 1615, 47107, 47113, 47123; Sec. 1101(b), Pub. L , 112 Stat. 107, 113. Page I-1

10 All manuals, policy statements, and directives used or relied upon by WSDOT or any of its subrecipients or agents to implement the DBE program shall be deemed to be revised to correspond to the provisions of this DBE Plan. In the event of any conflict between the DBE Plan or any of its provisions, with any manual, policy statement, or directive relied upon by WSDOT or any of its subrecipients or agents in the implementation of the DBE program, the DBE Plan as approved, including any approved later revisions, shall prevail. Where there is a conflict, federal law prevails over state law. Page I-2

11 II. Applicable Recipients Pursuant to 49 CFR Part 26.3, this plan applies to recipients of the following types of funds: A. Federal Aid Highway Funds authorized under Titles I (other than Part B) and V-B of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) Pub. L , 105 Stat. 1914, or Titles I, III, and V of the Transportation Equity Act for the 21st Century (TEA-21), Pub. L , 112 Stat B. Federal Transit Funds authorized by Title I, III, V and VI of ISTEA, Pub. L or by federal transit laws in Title 49, U.S. Code, or Titles I, III, and V of TEA-21, Pub. L C. Airport Funds authorized by 49 U.S.C , et seq. Page II-1

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13 III. Definitions The following definitions are referenced in 49 CFR Part 26.5: A. Affiliation has the same meaning the term has in the Small Business Administration (SBA) regulations, 13 CFR Part Except as otherwise provided in 13 CFR Part 121, concerns are affiliates of each other when, either directly or indirectly: a. One concern controls or has the power to control the other, or b. A third party or parties controls or has the power to control both, or c. An identity of interest between or among parties exists such that affiliation may be found. 2. In determining whether affiliation exists, it is necessary to consider all appropriate factors, including common ownership, common management, and contractual relationships. Affiliates must be considered together in determining whether a concern meets small business size criteria and the statutory cap on the participation of firms in the DBE program. B. Affirmative Action means; positive activities undertaken to eliminate discrimination and effects of past discrimination and to ensure nondiscrimination practices in the future. C. Alaska Native means; a citizen of the United States who is a person of one-fourth degree or more Alaska Indian (including Tsimshian Indians not enrolled in the Metlaktla Indian Community), Eskimo, or Aleut blood, or a combination of those bloodlines. The term includes, in the absence of proof of a minimum blood quantum, any citizen whom a Native village or native group regards as an Alaska Native if their father or mother is regarded as an Alaska Native. D. Alaska Native Corporation (ANC) means; any Regional Corporation, Village Corporation, Urban Corporation, or Group Corporation organized under the laws of the State of Alaska in Accordance with the Alaska Native Claims Settlement Act, as amended (43U.S.C. 1601, et seq.). E. Challenge means; a formal filing by a third party to rebut the presumption that a particular individual is socially and economically disadvantaged. F. Compliance means; that a recipient has correctly implemented the requirements of 49 CFR Part 26. G. Condition of Award means; the condition(s) of the formal decision of the Contracting Agency to accept the lowest responsible and responsive bidder for the work. H. Consultant means; one who gives expert or professional advice. Page III-1

14 I. Contract means; a legally binding relationship obligating a seller to furnish supplies or services (including, but not limited to, construction and professional services) and the buyer to pay for them. For purposes of this part, a lease and agreement is considered to be a contract. J. Contracting Agency means; any agency that administers contracts using USDOT funds. K. Contracting Opportunity means; any decision by a recipient or contractor to institute a procurement action to obtain a produce or service commercially (as opposed to intergovernmental actions). L. Contractor means; one who participates through a contract or subcontract (at any tier), in a USDOT-assisted highway, transit, or airport program. M. Disadvantaged Business Enterprise or DBE means; a for-profit small business concern: 1. That is at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged or, in the case of a corporation, in which 51 percent of the stock is owned by one or more such individuals; and 2. Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it. N. Goal means; a numerically expressed objective which recipients or contractors are required to make good faith efforts to achieve. O. Good Faith Efforts means; efforts to achieve a DBE goal or other requirement of CFR 49 Part 26 which, by their scope, intensity, and appropriateness to the objective, can reasonably be expected to fulfill the program requirements. Specific actions are delineated under Appendix A of 49 CFR Part 26. P. Immediate Family Member means; father, mother, husband, wife, son, daughter, brother, sister, grandmother, grandfather, grandson, granddaughter, mother-in-law, or father-in-law. Q. Indian Tribe means; any Indian tribe, band, nation, or other organized group or community of Indians, including any ANC, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians, or is recognized as such by the State in which the tribe, band, nation, group, or community resides. See definition of tribally-owned concern in this section. R. Joint Venture means; an association of a DBE firm and one or more other firms to carry out a single, for profit business enterprise, for which the parties combine their property, capitol, efforts, skills and knowledge, and in which the DBE is responsible for a distinct, clearly defined portion the work of the contract and whose share in the capital contribution, control, management, risks, and profits of the joint venture are commensurate with its ownership interest. Page III-2

15 S. Native Hawaiian means; any individual whose ancestors were natives prior to 1778, of the area which now comprises the State of Hawaii. T. Native Hawaiian Organization means; any community service organization serving Native Hawaiians in the State of Hawaii which is a not-for-profit organization chartered by the State of Hawaii, is controlled by Native Hawaiians, and whose business activities will principally benefit such Native Hawaiians. U. Noncompliance means; that a recipient or subrecipient has not correctly implemented the requirements of 49 CFR Part 26. V. Operating Administration (OA) means; any of the following parts of the USDOT: the Federal Aviation Administration (FAA), Federal Highway Administration (FHWA), and Federal Transit Administration (FTA). The administrator of an operating administration includes his or her designees. W. Personal Net Worth means; the net value of the assets of an individual remaining after total liabilities are deducted. An individual s personal net worth does not include: The individuals ownership interest in an applicant or participating DBE firm and the individual s equity in his or her primary place of residence. An individual s personal net worth includes only his or her own share of assets held jointly or as community property with the individual s spouse. X. Primary Industrial Classification means; the four digit Standard Industrial Classification (SIC) code designation which best describes the primary business of a firm. The SIC code designations are described in the Standard Industry Classification Manual. As the North American Industrial Classification System (NAICS) replaces the SIC system, references to SIC codes and the SIC Manual are deemed to refer to the NACS manual and applicable codes. Y. Primary Recipient means; a recipient which USDOT financial assistance and passes some or all of it on to another recipient. Z. Principal Place of Business means; the business location where the individuals who manage the firm s day-to-day operations spend most working hours and where top management s business records are kept. If the offices from which management is directed and where business records are kept are in different locations, the recipient will determine the principal place of business for DBE program purposes. AA. Program means; any undertaking on a recipient s part to use USDOT financial assistance, authorized by the laws to which this part applies. BB. Quotas means; proportional share, as of goods, assigned to a group or to each member of a group. CC. Race-Conscious measure or program means; one that is focused specifically on assisting only DBEs, including women-owned DBEs. Page III-3

16 DD. Race-Neutral measure or program means; one that is, or can be, used to assist all small businesses. For the purpose of 49 CFR Part 26, race-neutral includes gender-neutrality. EE. Recipient (to include subrecipient) means; any entity, public or private, to which USDOT financial assistance is extended, whether directly or through another recipient, through the programs of the FAA, FHWA, or FTA, or who has applied for such assistance. FF. Secretary means; the Secretary of Transportation for WSDOT or his/her designee. GG. Set-Aside means; a contracting practice restricting eligibility for the competitive award of a contract solely to DBE firms. HH. Small Business Administration (SBA) means; the United States Small Business Administration. II. Small Business Concern means; with respect to firms seeking to participate as DBEs in USDOT-assisted contracts, a small business concern as defined pursuant to Section 3 of the Small Business Act and SBA regulations implementing it (13 CFR Part 121) that also does not exceed the cap on average annual gross receipts specified in 49 CFR Part (b). JJ. Socially and Economically Disadvantaged Individual means; any individual who is a citizen (or lawfully admitted permanent resident) of the United States and who is: 1. Any individual who a recipient finds to be socially and economically disadvantaged on a case-by-case basis. 2. Any individual in the following groups, members of which are rebuttably presumed to be socially and economically disadvantaged: a. Black Americans which includes having persons of origins in any of the Black racial groups of Africa; b. Hispanic Americans which includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture, regardless of race; c. Native Americans which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians; d. Asian-Pacific Americans, which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Meaner), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth of the Northern Mariansas Islands, Macao, Fiji, Tonga, Kirbati, Juvalu, Naura, Federated States of Micronesia, or Hong Kong; Page III-4

17 e. Subcontinent Asian American, which includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal, or Sri Lanka; f. Women; g. Any additional groups whose members are designated as socially and economically disadvantaged by the SBA, at such time as the SBA designation becomes effective. KK. Transit Vehicle is; a vehicle used by an FTA recipient, e.g., bus, railcar, or van, for the primary program purpose of public mass transportation (this definition does not include locomotives or ferry boats). LL. Transit Vehicle Manufacturer (TVM) is; a manufacturer of vehicles used by FTA recipients for the primary program purpose of public mass transportation, e.g., buses, railcars, vans. The term does not apply to firms which rehabilitate old vehicles or to manufacturers of locomotives or ferry boats. The term also refers to distributors and/or dealers in transit vehicles with respect to requirements of 49 CFR Part 26. MM. Tribally-Owned concern means; any concern at least 51 percent owned by an Indian tribe as defined in 49 CFR Part 26. NN. Unified Planning Work Program (UPWP) means; a listing of planning projects proposed for funding by FTA. OO. USDOT means; the United States Department of Transportation, including the Office of the Secretary, the Federal Highway Administration (FHWA), the Federal Transit Administration (FTA), and the Federal Aviation Administration (FAA). PP. USDOT-Assisted Contract means; any contract between a recipient and a contractor (at any tier) funded in whole or in part with USDOT financial assistance, including letters of credit or loan guarantees, except a contract solely for the purchase of land. QQ. WSDOT means; the Washington State Department of Transportation. Page III-5

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19 IV. Nondiscrimination Pursuant to 49 CFR Part 26.7, WSDOT and its subrecipients shall not exclude any person from participation in, deny any person the benefits of, otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR Part 26 on the basis of race, color, sex, or national origin. In the administration of its DBE program, WSDOT and its subrecipients shall not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE program with respect to individuals of a particular race, color, sex, or national origin. Any subrecipient, contractor, subcontractor, or consultant who believes they have been discriminated against based on the aforementioned factors may file a complaint using the WSDOT External Discrimination Complaint Procedure (Appendix 1). Page IV-1

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21 V. USDOT Issued Guidance and Interpretations Only guidance and interpretations (including interpretations set forth in certification appeal decisions) consistent with 49 CFR Part 26 and issued after March 4, 1999 have definitive, binding effect in implementing the provisions of 49 CFR Part 26 and constitute the official position of the United States Department of Transportation. The Secretary of Transportation, Office of the Secretary of Transportation, FHWA, FTA, and FAA may issue written interpretations of or written guidance concerning 49 CFR Part 26. Written interpretations and guidance are valid and binding, and constitute the official position of the U.S. Department of Transportation, only if they are issued under the signature of the U.S. Secretary of Transportation or if they contain the following statement: The General Counsel of the Department of Transportation has reviewed this document and approved it as consistent with the language and intent of 49 CFR Part 26. Page V-1

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23 VI. Records and Reports A. WSDOT and Subrecipients In order to monitor the progress of its DBE program, WSDOT and its subrecipients will develop and maintain a record keeping system which will identify and assess DBE contract awards, prime contractors progress in achieving DBE subcontract goals, and other DBE affirmative action efforts. Specifically, WSDOT and its subrecipients will maintain records (for a period of seven years) showing: 1. Procedures followed by WSDOT and its subrecipients as set forth in this program, to identify and assess DBE contract awards and progress in achieving prescribed goals; 2. Specific efforts to identify and award contracts to DBEs; 3. Amount paid to each DBE subcontractor by a contractor and reported to the contracting agency on a quarterly basis; and 4. Amount paid to each DBE subcontractor by a contractor based on contractor s Affidavit of Amounts Paid and reported to the contracting agency once a year and/or obtained at the conclusion of each project. These reports shall include as a minimum: 1. The number of contracts awarded to DBEs; 2. A description of the general categories of contracts awarded to DBEs; 3. The dollar value of contracts awarded to DBEs; 4. The percentage of the dollar value of all contracts awarded to DBEs; and 5. An indication of whether and the extent of which the percentage met or exceeded the goal specified in the application. The records and reports required shall provide information relating to firms owned and controlled by minorities separately from information relating to firms owned and controlled by women. Records shall be available upon request of an authorized officer or employee of the government. WSDOT and its subrecipients shall submit reports conforming in frequency and format to existing contract reporting requirements of the applicable departmental element. Where no such contract reporting requirement exist, DBE reports shall be submitted quarterly. Page VI-1

24 B. Contractor Bidders List WSDOT and its subrecipients will also create and maintain a bidders list, consisting of all firms bidding on prime contracts and bidding or quoting subcontracts on USDOT-assisted projects. The list shall include all firms that bid on prime contracts or bid or quote subcontracts (successful and unsuccessful) on USDOT-assisted projects, including both DBEs and non-dbes. The list shall also include the following information: 1. Firm name; 2. Firm address; 3. Firm s status as a DBE or non-dbe; 4. The age of the firm; and 5. The annual gross receipts of the firm. In order to facilitate the receipt of this information, WSDOT will annually disseminate a receipt directed contractor survey to encourage all firms that have bid or quoted contracts to make themselves known to WSDOT and/or its subrecipients. If this method fails in its intent, WSDOT will make the submittal of this information a contract requirement. C. Prime Contractors and Subcontractors 1. All records relating to the DBE program (including payments to DBEs) shall be maintained by the contractor and each subcontractor during the course of the project and preserved for a period of three years following the performance of the contract; 2. The contractor or subcontractor shall make records pertaining to the DBE program (including subcontractor payment information) available for inspection, copying or transcription by authorized representatives of WSDOT, subrecipients, and/or USDOT and shall permit such representatives to interview employees as necessary; 3. Through the use of an affidavit of subcontractor s payment (submitted by the prime on a quarterly basis), WSDOT and its subrecipients will keep a running tally of actual payments to DBE firms for work committed to them at the time of contract award; and 4. WSDOT and its subrecipients will perform quarterly audits of contract payments to DBEs. The audit will review payments to DBE subcontractors to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the schedule of DBE participation. Failure to submit the required records upon request or to make such records available may be grounds for sanction actions. Page VI-2

25 VII. Assurances Pursuant to 49 CFR Part 26.13, WSDOT has signed the following assurance, applicable to all USDOT assisted contracts and subcontracts and their administration: The WSDOT shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any USDOT-assisted contract and/or agreement or in the administration of its DBE program or the requirements of 49 CFR Part 26. The WSDOT shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of USDOT-assisted contract and agreements. The WSDOT s DBE program, as required by 49 CFR Part 26 and as approved by USDOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to WSDOT of its failure to carry out its approved program, the Department may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C et seq.). The above assurance shall appear in all financial assistance agreements with WSDOT subrecipients. Page VII-1

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